Memeorandum

July 13, 2006

A Wilson Civil Suit?

ABC News tells us that Joe and Valerie Wilson have filed a civil suit against Cheney, Libby, Rove, and others in the Bush Administration over the Plame leak:

In a lawsuit filed in U.S. District Court, Valerie Plame and her
husband, Joseph Wilson, a former U.S. ambassador, accused Cheney, Rove
and I. Lewis "Scooter" Libby of revealing Plame's CIA identity in
seeking revenge against Wilson for criticizing the Bush
administration's motives in Iraq.

...

The lawsuit accuses Cheney, Libby, Rove and 10 unnamed
administration officials or political operatives of putting the Wilsons
and their children's lives at risk by exposing Plame.

"This lawsuit concerns the intentional and malicious exposure by
senior officials of the federal government of … (Plame), whose job it
was to gather intelligence to make the nation safer and who risked her
life for her country," the Wilsons' lawyers said in the lawsuit.

Joe Wilson had hinted at this lawsuit when we learned that Rove would not be indicted, and I had been adamant that this lawsuit would not happen - my bad.

[Where did I go wrong? Good question - I had this:

Joe Wilson can remain a hero to his audience for years to come simply by threatening to bring this suit... someday.

However, I see that they filed because there is a three year statute of limitations on some of their causes of action. How about that? And we don't want to fail to promote Valerie's new book deal:

Former CIA officer Valerie Plame, whose outing led to the indictment of
a White House official, has agreed to write her memoirs for Simon &
Schuster, weeks after a reported seven-figure deal with the Crown
Publishing Group fell through.]

Well - I stand by my position that the plaintiffs will have huge problems gathering (presumably classified) evidence and recreating secret grand jury testimony, not to mention establishing damages and demonstrating that the defendants were not simply acting in their capacity as public officials. And a number of commenters focused on the problems the Wilson's might face as they dealt with defense discovery requests (Mark Levin can't wait).

But this lawsuit will certainly help keep Joe's star ascendant in the lefty firmament, so there is some clear motivation.

I am trying to run down the filing - I am not registered at Businesswire, and I can't find it on Pacer. [But there is always The Smoking Gun, via Drudge].

MORE: THE CRITICAL, MISSING LINK - did the defendants even know Ms. Plame's status was classified?

34. On information and velief, the principal means of punishing Mr. Wilson for his public statements, both oral and written, was to disclose to selected reporters the classified CIA identity of his wife, Plaintiff Valerie Wilson... An integral part of their scheme was the identification of Mrs. Wilson as a classified CIA employee.

That would be a bit more convincing if there was evidence showing that Libby or the others knew that Ms. Plame's status had been classified. None of the reporters who were leaked upon were told that her status was classified (we deal with Novak's use of "operative" here).

And per court filings the defense tells us (see "MORE") that Libby "testified to the grand jury unequivocally that he did not understand
Ms. Wilson’s employment by the CIA to be classified information." If Special Counsel Fitzgerald had evidence to contradict that, that would have made a substantial perjury charge; no such charge appears in the indictment.

However, Fitzgerald did say this in explaining (in Aug 2004) the potential significance of Judy Miller's testimony:

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

Nor did he get that evidence from Ms. Miller.

Did Dick Cheney know whether Ms. Plame was covert? Murray Waas took us to this dead end:

Cheney told investigators that he had learned of Plame's employment by
the CIA and her potential role in her husband being sent to Niger by
then-CIA director George Tenet, according to people familiar with Cheney's interviews with the special prosecutor.

Tenet has told investigators that he had no specific recollection of
discussing Plame or her role in her husband's trip with Cheney,
according to people with familiar with his statement to investigators.

I'm sure Mr. Tenet remembers getting a Medal of Freedom. Regardless, it does not appear that Fitzgerald was able to conclude, after a two year investigation, that Libby knew Ms. Plame had classified status. It's hard to believe that in a civil suit, the Wilson's will have more luck.

CAUSE OF ACTION: I see a problem in the fifth and sixth causes of action - here is point 61 (essentially repeated at 67):

Pursuant to, and in furtherance of, this common scheme, defendants Rove and Libby unlawfully disclosed to members of the press Plaintiff Valerie Wilson's classified CIA employment.

Riddle me this - if they acted "unlawfully", what law did they break? And don't tell me, tell Fitzgerald, because he forgot to charge them.

IRRESISTIBLE CHEAP SHOT: Loking at the bio of Joe Wilson's attorney, I see that he is in the "ORDER OF THE COIF". That should serve him well with an important-hair client like Joe. But seriously...

A VERY WEAK CASE: Stephen Spruiell catches lefty Lawrence O'Donnell with a pin for each Olbermann balloon.

A QUESTION: Can the Wilsons "file and forget" this suit, or do they actually have to start deposing witnesses and doing legal stuff? I ask because thay may have filed it just to beat the statute of limitations clock, rather than with any real hope of moving forward.

CAN'T BOTH BE RIGHT? Is there a lefty blogger worried about a Wilson lawsuit misfiring? A righty blogger not gleeful? One side is very wrong here. (It's the other side...)

"The lawsuit accuses Cheney, Libby, Rove and 10 unnamed administration officials or political operatives of putting the Wilsons and their children's lives at risk by exposing Plame."

Wilson put his wife at risk the moment he signed his New York Times article. All the world's intelligence agencies read the article and assumed he is CIA or CIA connected. They also presumably all have "Who's Who in America." I can testify for the defense on this matter, I have rudimentary spy-novel reading experience and my conclusion is a no-brainer.

But the discovery will be fun, fun, fun! Joe, did you meet with Kerry in 2003? Joe, that picture of your wife in pajamas...why, why, why!? Joe, you ever work for any foreign power, like...France? Joe, I instruct you not to answer question with literary flair!

What a coincidence--there is a new book deal--and it was announced on the same day as this suit:
"Ex-CIA Officer Finds New Memoir Publisher

Thursday, July 13, 2006

BY HILLEL ITALIE, AP National Writer

NEW YORK — Former CIA officer Valerie Plame, whose outing led to the indictment of a White House official, has agreed to write her memoirs for Simon&Schuster, weeks after a reported seven-figure deal with the Crown Publishing Group fell through.

"It will be a very interesting book by a key figure of our time," Simon&Schuster spokesman Adam Rothberg said Thursday.

Financial terms were not disclosed and no publication date has been set. In early May, Crown announced that it would publish Plame’s book, but the two sides could not agree on a final contract."

OK, I have to read the entire thing but AJ Strata - reading it, found some things about Grossman and says it sounds like Grossman is apart in some way -- either new info on him or lifted from the Libby indictment -- but they are hanging there hat on the 1x2x6 source...Also, Retire05 commenter at AJ makes an excellent point...since they are the plaintiffs and the burden is on them to prove all their wild crap... just how are they going to prove crap that the SP couldn't??? It's up to them to prove all theses causes of action...Amend or defend...

WaPo website has an article from 5:54p today by Daniela Deane that flatly says:

"Fitzgerald has described a 'concerted action' by 'multiple people in the White House' to 'discredit, punish or seek revenge against' Wilson. Fitzgerald in court papers pointed to Cheney as the man at the center of that campaign."

Claricce...someone needs to send him a case of alka seltzer...on the day they file a suit for invasion of privacy, violating their freedom of speech and hurting their future employment prospects AND set up a legal FUND!!! they announce a book deal...stunning!

Check paragraph 12. It seems it's not just Dick, Karl, and Scooter named by there are TEN "John Does" working either for the White House or in general GOP operatives. Oh please tell me Mary Matalin and Katherine Harris are among the 10!

We'll see how Rove and Co. do in civil court where the standard is a little different from 'reasonable doubt'. Physical evidence will not be necessary when a cornucopia of witnesses
are readily available.

“The British Government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

i hereby declare the penalty for using the term "sixteen words" is to write the actual sixteen words out longhand 1000 times so that the user of the term can appreciate how stupid it is to call it a lie. starting with the writers of the lawsuit.

no matter what joe found out on his trip to africa, i find it incredibly unlikely for him to be in a position to disprove what the british government learned. he'd be on the wrong continent for starters...

This lawsuit;
from the sublime to the ridiculous.
Fred Barnes says all this does is make them look foolish and shows their true colors.He stands by what was discovered and related by Novak. Called Plame a CLERK.

I think this is just another gaunlet thrown down by the rogue folks that brought us the "wilson gambit". Congressman Hoekstra must have shaken their tree. Me thinks this is all connected with the rogues,the DNC, Joe and our Pal Val.

The first appearance of the angle that the administration was trying to get revenge on critic Joe Wilson by "outing his wife" was from David Corn in the Nation Magazine. This was also the first time it was suggested that any laws had been broken by "outing" a CIA "operative". Who was the source for David Corn's story? Joe Wilson.

I can't wait when Wilson is asked about the misquotes and misattributions -- and then they get to ask Pincus and Kristof about their shoddy journalism --- but mostly, can't wait for them to explore exactly what Wilson means when he says "Literary Flair"...that's gonna be a transcript worth paying for.

Even though I don't thin it will ever get that far...but those are gifts I tell you.

Perhaps Val is going to be Kerry's new running mate for '08!!! It will be an unbeatable combination - The distinguished, battleworn Vietnam Veteran and the spy who risked it all for her country only to be betrayed by the evil Cheney, Rove cabal. I can see the headlines. tee hee

Hey Cementhead: I can tell that you are no lawyer. A good lawyer will chew up and spit out the Wilson's. I say that based on thirtyfive years of big ticket litigation. The suit is an invitation to destroy them. If you were a little less of a partisan knee-jerk you would know that. All the best...

One last time; the John Doe stuff is in virtually every lawsuit ever filed. It protects the plaintiffs right to add more people to the suit if the evidence in discovery warrants. It does not mean anyone else will be named. Someone may, but that language is in every lawsuit.

**You don't suppose...I mean..was it she who accompanied him on the super secret trip to Cambodia at Christmas? Oh . My. God. Now it all comes together............**

Think about it Clarice!! The hat, the quick way Joe was dropped from the 04 campaign when Teraaazzza figured it all out. I dare say there are a ton of connections just waiting to be made if one has the courage to give voice to them....

Probably not. They are not usually filed with the court until they are used at the trial when they are admitted into evidence. All of the actual documents they file will be available, if the court they file in uses PACER.

The defendants just got tossed in the briar patch. Discovery will be so much fun that the defendants could probably get some of the top litigators in the nation to work for them for free in order to enjoy it.

Some points:

-- let's list all the journalists who will get deposed. And the documents that will have to be produced.

-- we get to find out all the people inside the beltway who knew she was CIA

-- maybe the defendants will be able to use the discovery process to get a good idea who in the CIA is part of the anti-Bush conspiracy.

-- imagine the fun cross-examining Joe Wilson. By the time all the lies are fully exposed, his problem won't be a lack of credibility, it will be negative credibility. The jury will believe the opposite of whatever he swears is true.

Probably only about 3% of civil suits see the inside of courtroom. Actions of this nature are not about facts, or who is right or wrong, it’s about which party has the ability and willingness to continue writing checks to their lawyers.

Cheney has the ability to make the first hour of each deposition used exclusively to introduce his legal team. Add to that individual lawyers for about a dozen more defendants and Joe’s legal tab will outpace the netroot’s ability to support him.

A countersuit will insure Joe’s inability to drop the whole thing when his supporters run out of money and patients. Plus, the tab for legal fees he could be wacked with by losing will dwarf any book deal Val might have.

Sometimes you have to marvel at grand, stupid gestures. But, this is not one.

Joe, Val and the sinister cabal behind them know just how bad a move this is if it was only about a civil suit. It makes absolutely no sense to bring this into a court where they can be deposed along with their co-conspirators. Even if Joe was promised sainthood in the Church of Liberals, he would not take this risk if the alternative wasn’t much worse.

This is a preemptive move to make it seem Joe’s upcoming indictment is “retribution” for trying to “bring the truth out” (and no, I don't know as yet what this indictment will be for).

"Discovery will be so much fun that the defendants could probably get some of the top litigators in the nation to work for them for free in order to enjoy it."

Hehehe... They'll probably be lining up at the White House soon, screaming "Pick me! Pick me!" This will be one of the most covered trials in the history of the United States, if it ever goes to trial. Think about it, a defense attorney for this case will basically just have to stand there and hand the Wilsons their ass.

"So, Mr. Wilson, did you or did you not allege to two reporters that you had debunked the Niger forgeries?"

"And is it not true, Mr. Wilson, that these allegations were completely false? In fact, isn't it true that you had never seen the documents as part of your mission?"

Barney - thanks. That means there is scope and hope that Mary Matalin will be named at a later date. Which could mean that James Carville will have to tend to the kids, which keeps him away from reporters the like. Strikes me as a win, win situation!

Hell, I've got enough evidence on my blog to get them started. Both Cheney and Rove would have a strong case. Of course, it would be like taking candy from a baby. Not sure if that's Cheney and Rove's thing.

Wow--you can't make this stuff up!!! As one of the posters said above when you are a narcissistic idiot like Wilson, anything is possible. People keep saying Rove is an evil genius--nahhh, he's dealing with massive liberal egos and miniscule liberal intellects. This gives "hoist on their own petard" a whole new meaning.

I think they immunize themselves from malicious prosecution by having the professor undersign the complaint. He will provide the cover of authority for stretching the parameters of the law, here makin' up stuff.

The financial details of the new Plame book deal have not been disclosed where the previous deal that fell through is still being touted as "seven figures." Am I cynical to assume the new deal falls substantially short of the old deal financially speaking?

"Update: Goldstein’s on the money in identifying the other reason they’re suing:

I will say that this suggests to me that Fitzgerald’s investigation is over. And if he couldn’t find the requisite proof to indict, it’s possible that Plame and Wilson have decided to pursue this as a way of create [sic] the appearance of scandal where none existed."

jwest: I respect your analysis and logical train that no one could be so stupid as to file the Wilson suit just for self-agrandizment. However, those who have a long track record here (Sexion) argue persuasively that Joe is indeed just that stupid. I know that even a stupid client would take some persuasion to get even Mr Wolfe to file such a suit (opening him to ridicule and sanctions, etc.) so that argues that something else must be afoot. But I cannot for the life of me conjure up a basis for indicting Joe. I know that you have alluded to such a possibility in earlier posts, which I can't retreive, so could you kindly help and suggest any possible grounds for indicting Joe? Thanks.

Hhhmmm...interesting post at Hot Air by Blacksheep (dated Blacksheep on July 13, 2006 at 6:52 PM)

Whaddya think?

"To those claiming this suit will be summarily dismissed: Don’t be so sure.

If you read the Bivens case on which the suit is based, it’s easy to construct a scenario in which at least one claim survives for trial. My reasoning is that Bivens expressly calls for shaping the law around the situation rather than the other way around, and is therefore a pet case for activist judges because it is based on practicality rather than a strict reading of the Constitution.

For example, the First Amendment would appear to require an act of Congress, or at minimum a state actor to whom a legislative power has been delegated, in order to find a free speech claim (”Congress shall make no law … abridging the freedom of speech ….”). Seems clear enough, no?

Well, no, as it turns out, because the Supreme Court held in Bivens (citing Bell v. Hood) that “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”

Thus, as in Bivens, members of the Executive Branch can probably be substituted for the required state actor (which now requires only that someone be acting under color of law) and sued for money damages, even though they don’t fit within the seemingly clear language of the First Amendment.

It is also noteworthy that each of the defendants in the complaint have been sued in a personal capacity rather than in their Executive capacity, which would otherwise allow invocation of an executive immunity type defense.

That said, the Wilsons’ individual causes of action seem to me to be extremely weak. In particular, the thrust of the complaint has to do with the supposedly unlawful disclosure of intrusive or otherwise private facts, and the subseqent negative impact of those disclosures.

But can plaintiffs who’ve been listed in Who’s Who, published articles in the NYT about the very subject matter they’re now suing over, and gone on Meet the Press to plead their case really claim to have a reasonable expectation of privacy? Or that the publicity was legitimately damaging when they themselves are out there furthering the story? Probably not, and I don’t see anything good coming from this for the Wilsons — nor should there be."

Since I don’t even play a lawyer on TV, I’ll have to go along with your assessment. However, having played a defendant and plaintiff in the real world, I do know that countersuits don’t necessarily need to be about anything much.

The whole point is to drain the life and bank account of your opponent to the point that they cry for quick and painless death.

All it takes is a 9 figure bank account and the desire to see someone crushed like a bug. Cheney has the former, let’s hope he has the latter.

Fitz' case may not be over, but Missus Wilson #3's statute of limitations runs out tomorrow, 3 years from the date of publication of Novak's column. If she was going to sue, she had to do it by tomorrow or forfeit. I suspect the complaint was drawn up a while ago. I'm sure Missus Wilson #3 and hubby are not very happy they are having to do it on the heels of Novak's revelation. They thought they woudl have the headlines to themselves. Hahahahahaha. What a couple of assclowns.

Does today not resemble a Hollywood premiere for these two Warholians more than aggrieved and oppressed victims seeking justice?

I'm telling you...if there were smart campaign aides for Repub. running I be laying this on the lap of the DNC at a time when Israel is on the brink of war and bombings in India...Pelosi just had to spank her caucus for not showing up to the policy meetings!

We are at war, serious issues face us and the world and all the Democrats have managed to accomplish is host luncheons and fetes for Joe Wilson!!!!

Clarice, if we are throwing rules around, I'd do a rule 68, offer then $1.00 and let them pay my attorney's fees. That would be accompanied by my 5000 requests for admissions and at least 10 deposition notices.

I wish I knew what Wilson will be indicted for, but it’s pure speculation.

My guess is that it will be centered on obstruction. We don’t know what he provided to Fitz, but you can rest assured it was twisted and inaccurate. If Fitz just woke up when the Cooper notes were revealed, along with the Wilson/Grossman connection, I’m sure he will find enough to not only indict, but ask for the death penalty.

Fitz has no options other than indictments on the Wilson side. He has to drop the Libby counts soon (before Walton throws them out) and if he just jumps on train back to Chicago people will yell “Hide the victims, it’s Fitz!” every time he walks into the office.

By threatening Cooper, Corn, Grossman and few others with indictments for obstruction and false statements, Fitz can glean enough testimony to make Wilson plead on a few counts.

I think the point is to distract Rove and Cheney while Cindy harasses the President's vacation time.

I see the case is filed in the DC court. I wonder if they do things faster than out here in California. I am the Plaintiff in a Civil Suit in this state and we passed the 5 year mark on 29 Mar 2006 and still haven't gotten to the deposition stage yet.

Question: aren't most civil suits handled on a contingency basis? What half-way smart and decent attorney would take on Plame/Wilson on contingency? Seems though that Cheney, Rove, et al would have dozens lined up. Not only the financial reward that comes from NOT LOSING, but the publicity alone would make a career. I don't believe there is a lawyer alive that puts partisanship over financial gain, unless it is what's his name (oh yeah Ramsey Clark) who represents the Saddam Hussein's of the world.

I don't think any lawyer with two brain cells to rub together would take Wilson's case on contingency. There's got to be an excellent chance of significant monetary award and that simply doesn't exist here.

If they want this to get to trial I think at least some of it would. I doubt defendents would be granted summary judgements. A summary judgement has a high threshold to meet. Considering the players and the jurisdiction its probably even harder than usual.

It will be interesting to see who, if anyone, countersues. My sense is only Libby might. Anyone else care to guess?

Jane, I never used Rule 68 (I suppose they have it in D.C. where they've adopted most of the federal rules of procedure). In local Court I mostly did appellate work and in federal court, not personal liability things. But your suggestion is delightful:

"Rule 68. Offer of Judgment

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability."